Uniform Trade Secrets Act
Overview The Uniform Trade Secrets Act (UTSA) is a model law drafted by the National Conference of Commissioners on Uniform State Laws to better define rights and remedies of common law trade secret. It has been adopted by 46 states, the District of Columbia and the U.S. Virgin Islands. Massachusetts, New Jersey, New York and Texas have not adopted the Act. Some of these states continue to apply the common law to trade secrets, and some have adopted separate state statutes. Definition of trade secret The act defines a trade secret as Misappropriation Misappropriation is the wrongful acquisition, disclosure or use of a trade secret, which is defined as: Under the Act these circumstances exist when the trade secret has been acquired: * improperly; or * under an obligation not to disclose or use it; or * from someone else who had an obligation not to disclose it; or * by accident or mistake (for example, through a misdirected email or facsimile transmission), if before using or disclosing the trade secret the person acquiring it learns that it is a trade secret. This is one of the reasons that many firms and individuals who deal regularly with trade secret information routinely include a notice in their emails and fax cover sheets advising of the confidential nature of the contents. Pleading A cause of action for monetary relief under UTSA may be said to consist of the following elements: (1) possession by the plaintiff of a trade secret; (2) the defendant’s misappropriation of the trade secret, meaning its wrongful acquisition, disclosure, or use; and (3) resulting or threatened injury to the plaintiff. The first of these elements is typically the most important, in the sense that until the content and nature of the claimed secret is ascertained, it will likely be impossible to intelligibly analyze the remaining issues. Under California law, a trade secret plaintiff must, prior to commencing discovery, “identify the trade secret with reasonable particularity.”Cal. Code Civ. Proc. §2019.210; see Mark Lemley, "The Surprising Virtues of Treating Trade Secrets as IP Rights" 61 Stan.L.Rev. 311, 344 (2008) (plaintiff should be required to “clearly define[] what it claims to own, rather than (as happens all too often in practice) falling back on vague hand waving”).) Remedies The UTSA imposes civil rather than criminal liability for misappropriation of trade secrets and creates a private cause of action for the victim. Remedies for misappropriation of trade secrets under the Act are injunctions, damages, including "exemplary" (punitive) damages, and, in cases of bad faith or willful and malicious misappropriation, reasonable attorney's fees. Defenses The UTSA does not codify the defenses traditionally recognized in the common law of trade secrets, such as disclosure by the owner, reverse engineering, independent development, etc. Preservation of secrecy The Act also permits courts to grant protective orders to ensure the secrecy of a trade secret during discovery and to prevent disclosure by witnesses. In addition, the Act authorized in camera hearings to take testimony. References See also * Economic Espionage Act of 1996. External link * Full text, Uniform Trade Secrets Act. Category:Legislation Category:Legislation-U.S.-State Category:Legislation-U.S.-Trade secret Category:Trade secret Category:Definition